Little public action in Chinese cyberspying case

WASHINGTON - In the two weeks since the Obama administration, with fanfare, accused five Chinese military officers of hacking into American companies to steal trade secrets, they have yet to be placed on Interpol's public listing of international fugitives, and there is no evidence that China would even entertain a formal request by the U.S. to extradite them.

Short of the five men flying to the U.S. for a vacation, for example, there's no practical way they could be arrested outside China without help from foreign governments. It's also unclear whether the charges levied by the U.S. are accepted internationally as a crime. No country so far has publicly expressed support for the groundbreaking criminal charges.

The Obama administration described the unusual indictment on May 19 as a wakeup call for China to stop stealing U.S. trade secrets. The FBI published "wanted" posters with pictures of all five Chinese military officers. Attorney General Eric Holder said such hacking defendants "will be exposed for their criminal conduct and sought for apprehension and prosecution in an American court of law."

Now, weeks later, that's looking less likely than ever, illustrating the complex legal and diplomatic issues posed by the unprecedented indictment. There may be no viable options for Holder to make good on his word.

"The next step needs to be us, here in the U.S., saying this is not just a U.S.-China issue," said Shawn Henry, former cyber director at the FBI and now president of CrowdStrike Services, a security technology company. "This is a China-versus-the-world issue."

So far, the U.S. does not appear to have the world on its side.

Neither officials in China nor the United States said they would comment on any efforts by American prosecutors to arrest the Chinese military officers. The White House and State Department directed inquiries to the Justice Department, where spokesman Marc Raimondi said, "Our investigation is active, and we are not going to comment on specific actions to locate the individuals charged in the indictment."

A federal grand jury charged the five Chinese military officials with hacking into five U.S. nuclear and technology companies' computer systems and a major steel workers union's system, conducting economic espionage and stealing confidential business information, sensitive trade secrets and internal communications for competitive advantage.

The U.S. and China have no extradition treaty. And China's laws preclude extraditing its own citizens to countries where there is no treaty.

China has denied the hacking allegations and wants the U.S. to revoke the indictment. A defence ministry spokesman, Geng Yansheng, said last week that the case ran counter to China-U.S. military co-operation and had damaged mutual trust. Citing the suspension of dialogue on computer security, Geng said further responses from China would depend on Washington's attitude and actions.

"The Chinese are obviously not going to extradite their officials to the U.S.," said John Bellinger, the former legal adviser to the State Department. For this reason, Bellinger, now a partner at the law firm Arnold and Porter, said he does not expect the U.S. to make the request. "To ask them to do something that they're obviously going to then deny makes (the U.S.) look ineffectual."

The U.S. can ask Interpol, the international criminal police organization, to place defendants on its "red notice" list of wanted fugitives, which would alert the 190 member countries if the men were to travel outside of China. But the five Chinese military officers weren't added to Interpol's public list as recently as Monday, although there were 24 other Chinese citizens on that list wanted by the U.S. on charges that included fraud, sexual assault, arson and smuggling.

Raimondi, the Justice Department spokesman, would not say whether the U.S. had asked Interpol to assign red notices to the men. Interpol does not allow red notices in cases it considers political in nature, but a spokeswoman, Rachael Billington, declined to say whether Interpol considers economic espionage to be political.

"Whilst we could not comment on a hypothetical situation, requests for red notices are considered on a case by case basis to ensure that they comply with Interpol's rules on the processing of data," Billington said.

A former Interpol official said especially sensitive international cases are far more complex.

"In this kind of case, where it has a lot of attention around the world and involves superpowers, it's going to be more under a microscope about what they have," said Timothy Williams, former director of Interpol's national central bureau in Washington, and now the general manager of G4S Secure Solutions, a security consulting company.

Interpol sometimes circulates secret red notices, such as cases involving sealed indictments or arrest warrants. But listing the five Chinese men secretly on Interpol's list would not be effective in this case, since China is a member of Interpol and would see that the U.S. wants them detained if they were to travel outside China.

The Chinese defendants could argue they are immune from prosecution in the U.S. under international law. Such claims are so often contested that the issue is currently under review by a United Nations commission, said Tim Meyer, a law professor at the University of Georgia. Meyer expects the indictment of the five Chinese military officials to come up during the U.N. discussions.

"To be clear, this conduct is criminal," said John Carlin, assistant attorney general for national security. "And it is not conduct that most responsible nations within the global economic community would tolerate."

But few countries want to upset China and suffer trade repercussions. The lack of support for the U.S. position could also be due to other countries committing the same practices as China.

"I have no comments on the U.S. action on China," said Joao Vale de Almeida, the European Union's ambassador to the U.S.

Still, the Obama administration says it is committed to bringing the five Chinese men to justice, and it says this case will be the first of many like it.

In a 2003 case, the U.S. charged a Cuban general and two pilots with murder in the shooting down of two civilian planes in 1996. Like China, the U.S. has no extradition treaty with Cuba. And, at the time, some questioned whether the indictment was politically-motivated.

Eleven years later, the former U.S. attorney in Miami in 2003, Marcos Jimenez, said the case against the Cuban military officials was still worth bringing, even if no one was ever prosecuted in the U.S.

"It's a message to the world that we're not going to tolerate these types of crimes," Jimenez said. "You can't just kill unarmed civilians in international air space. You can't just hack into our computer systems. These aren't things that we're just going to ignore and not prosecute."